162 F.

3d 1275
1999 CJ C.A.R. 76

UNITED STATES of America, Plaintiff-Appellant,

v.
Toribio Miguel DE LA CRUZ-TAPIA, Defendant-Appellee,
No. 97-2376.

United States Court of Appeals,

Tenth Circuit.
Dec. 22, 1998.

Presiliano Torrez, Assistant U.S. Attorney (John J. Kelly, United States

Attorney, and Steven C. Yarbrough, Assistant U.S. Attorney, on the
brief), Las Cruces, New Mexico, for Plaintiff-Appellant.
Robert J. McDowell, Assistant Federal Public Defender (Ann Steinmetz,
Federal Public Defender, with him on the brief), Las Cruces, New
Mexico, for Defendant-Appellee.
Before SEYMOUR, Chief Judge, PORFILIO and BRORBY, Circuit
Judges.
SEYMOUR, Chief Judge.

The United States government appeals from an order of the district court
granting defendant Mr. De la Cruz-Tapia's motion to suppress evidence seized
during a United States Border Patrol stop of his vehicle. The district court held
that the facts did not support a reasonable suspicion for the stop, thereby
violating Mr. De la Cruz-Tapia's Fourth Amendment right. We affirm.

I.
2

On July 9, 1997, around 8 a.m., Agent Joel Nickles of the United States Border
Patrol was conducting a roving patrol on Interstate 25 south of Truth or
Consequences, New Mexico. Agent Nickles was parked in an unmarked jeep in
the median when Mr. De la Cruz-Tapia drove by in a 1977 Chevrolet. Agent

Nickles observed that Mr. De la Cruz-Tapia was an Hispanic male sitting in an

upright position and staring straight ahead. Agent Nickles caught up to the
vehicle, and drove along side it while he radioed for a license plate check.
3

Before Agent Nickles received any information from the check, the vehicle
exited into the town of Truth or Consequences at Exit 79. Agent Nickles, who
was in the left lane of traffic at the time, was unable to follow the vehicle. He
subsequently made a u-turn in the median and took Exit 79 southbound into
Truth or Consequences in search of the vehicle.

Agent Nickles located the vehicle parked in plain view in the parking area of a
Chevron gas station. The trunk and hood were open and Mr. De la Cruz-Tapia
was standing in front of the car. Agent Nickles pulled into a nearby parking lot
to observe the situation. Agent Nickles received information over the radio that
the vehicle was registered to an Antonio Torres in Columbus, New Mexico, that
the vehicle was not stolen, and that the vehicle had crossed the United
States/Mexico border three times in the past 72 hours.

After spending a period of time at the gas station, Mr. De la Cruz-Tapia closed
the hood and trunk, got into his car, and resumed northbound travel on
Interstate 25. Agent Nickles radioed another border patrol agent in a marked
unit and requested that he stop Mr. De la Cruz-Tapia. Mr. De la Cruz-Tapia's
vehicle was stopped and searched near Exit 83 on Interstate 25, and hidden
bundles of marijuana were found.

II.
6

On appeal of a motion to suppress, we accept the district court's factual findings

unless clearly erroneous and view the evidence in the light most favorable to
the prevailing party, here Mr. De la Cruz-Tapia. See United States v. Downs,
151 F.3d 1301, 1302 (10th Cir.1998) (citing United States v. Maden, 64 F.3d
1505, 1508 (10th Cir.1995)); United States v. Wood, 106 F.3d 942, 945 (10th
Cir.1997). "[A] finding is 'clearly erroneous' when although there is evidence to
support it, the reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed." United States v.
United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746
(1948). "The reviewing court oversteps the bounds of its duty under Rule 52(a)
if it undertakes to duplicate the role of the lower court.... Where there are two
permissible views of the evidence, the factfinder's choice between them cannot
be clearly erroneous." Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct.
1504, 84 L.Ed.2d 518 (1985) (citations omitted).

" 'The ultimate determination of reasonableness under the Fourth Amendment

is, however, a conclusion of law that we review de novo.' " United States v.
Vasquez-Pulido, 155 F.3d 1213, 1215 (10th Cir.1998) (quoting United States v.
Anderson, 981 F.2d 1560, 1566 (10th Cir.1992)), cert. denied, 119 S.Ct. 437
(1998). We have held that "[i]n determining whether reasonable suspicion
exists to justify stopping a vehicle, a court must consider the totality of the
circumstances." United States v. Barbee, 968 F.2d 1026, 1028 (10th Cir.1992)
(citing United States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 104 L.Ed.2d 1
(1989)); see also United States v. Pollack, 895 F.2d 686, 689-90 (10th
Cir.1990). "[I]llegal activity does not depend upon any one factor, but on the
totality of the circumstances." Wood, 106 F.3d at 946. Any one factor may be
consistent with innocent travel, but the factors must be "taken together."
Sokolow, 490 U.S. at 9, 109 S.Ct. 1581.

In examining the totality of the circumstances, "[c]ommon sense and ordinary

experience are to be employed and deference is to be accorded to a law
enforcement officer's ability to distinguish between innocent and suspicious
actions." Wood, 106 F.3d at 946 (citation omitted). However, the officer must
articulate more than an " 'inchoate and unparticularized suspicion or "hunch." '
" Sokolow, 490 U.S. at 7, 109 S.Ct. 1581 (quoting Terry v. Ohio, 392 U.S. 1,
88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Moreover, we have held that " '[s]ome
facts must be outrightly dismissed as so innocent or susceptible to varying
interpretations as to be innocuous.' " Wood, 106 F.3d at 946 (quoting United
States v. Lee, 73 F.3d 1034, 1039 (10th Cir.1996)).

We frequently have been asked to review the legality of border patrol stops. See
United States v. Monsisvais, 907 F.2d 987, 989 (10th Cir.1990). While legal
standards do not change between reviewing the denial of a motion to suppress
and the grant of a similar motion, we recognize that in the latter situation there
may appear a false conflict. Viewing the evidence in the light most favorable to
the prevailing party may seem to conflict with the deference owed to the law
enforcement agent's judgment. We do not find this position untenable. Our
standard of review is settled. The facts must be viewed in the light most
favorable to the prevailing party, Mr. De la Cruz-Tapia. Unless the district
court was clearly erroneous in judging the testimony and credibility of Agent
Nickles, we will not duplicate the district court's work by superimposing our
own fact findings. In the de novo review of reasonable suspicion, we give due
deference to Agent Nickles.

A.
Factual Findings

10

In applying the articulated standard of appellate review to the instant case, we

look to the district court's extensive written findings. The record shows that
Agent Nickles relied upon the following factors in deciding to stop Mr. De la
Cruz-Tapia: (1) the type of car he was driving; (2) his failure to look at Agent
Nickles when he drove by; (3) his abrupt exit from the interstate; (4) his
behavior at the gas station; and (5) the fact that the vehicle had crossed the
international border at Columbus three times in the past three days. Rec., vol. I,
doc. 29 at 3. The district court addressed the five points and we will review
each finding in turn for clear error.

11

(1) Car Type

12

The government suggests the age and size of the car is a significantly
suspicious factor. Agent Nickles testified that "[o]lder model vehicles like this
one are consistent with the trend toward illegal aliens and drug trafficking."
Rec. vol. II, at 31. The district court, however, noted Agent Nickles' later
testimony that "there's a lot of older model cars on the road." Id. at 54. The
agent stated that characteristics related to alien and drug transport included
heavily-loaded backends and additional passengers. But the evidence indicated
that the Chevrolet did not appear heavily loaded, and had no passengers. The
car did not swerve or speed, and was legally registered. The district court found
nothing unusual about the car, and found that the make and model were limited
in significance. We find nothing in the record to contradict these findings of
fact.

13

(2) Lack of Eye Contact

14

The government also argues that Mr. De la Cruz-Tapia's lack of eye contact
was suspicious, evasive behavior. The government's argument turns on the
factual inference that the driver actually recognized Agent Nickles as part of the
border patrol. To the contrary, the district court found that Mr. De la CruzTapia did not know of Agent Nickles' position, and accordingly, discounted the
behavior as non-evasive. The evidence shows Agent Nickles drove an
unmarked jeep, and he testified he was unsure the driver recognized him. On
cross-examination, Agent Nickles was asked, "Even as you're following and
you pull up kind of catty-corner to him, you're not even sure then if he is able to
recognize you as a border patrol agent?" To which he responded, "I can't say
for sure that he recognized me, no." Id. The only visible part of Agent Nickles
uniform was a border patrol baseball cap. Since Mr. De la Cruz-Tapia stared
straight ahead, it is plausible he did not see the cap. The district court found it
unlikely that Mr. De la Cruz-Tapia had seen the car from two lanes away on the
interstate.

15

The district court also noted that Agent Nickles undermined his grounds for
suspicion when he testified that he believed both eye contact and lack of eye
contact constituted suspicious behavior. On cross-examination, Agent Nickles
testified, "I thought it was suspicious the way he stared straight ahead." Id. at
51. The cross-examiner then asked, "Had he looked at you, would you have had
any concerns?" Id. at 52. To which Agent Nickles replied, "Possibly, depending
on how he looked at me."1 Id.

16

Under these circumstances, the inference of non-recognition and the credibility

of Agent Nickles could be interpreted in favor of Mr. De la Cruz-Tapia without
offending common sense. As such, the district court's choice of interpretation is
not clearly erroneous.

17

(3) Abrupt Exit

18

The government's argument of evasive behavior based on Mr. De la CruzTapia's abrupt exit from the interstate turns again on Mr. De la Cruz-Tapia's
recognition of Agent Nickles as a member of the border patrol. As discussed
above, we do not reverse the district court's finding to the contrary. In addition,
the district court concluded that Mr. De la Cruz-Tapia's driving implicated
ordinary rather than evasive behavior since the evidence showed Exit 79 is an
abrupt exit. Agent Nickles, in surveillance of the Chevrolet, missed the exit
himself and had to make a u-turn. The court discounted Agent Nickles
testimony that he saw no brake lights when Mr. De la Cruz-Tapia exited
because given Agent Nickles' position along side the Chevrolet, it was unclear
that the brake lights were visible to him. Again, we find the inferences
plausible and defer to the district court's findings on Agent Nickles' credibility.

19

(4) Gas Station

20

The government next argues that Mr. De la Cruz-Tapia's activity at the gas
station was suspiciously evasive. However, if he did not know he was being
followed by a border patrol agent, the behavior seems innocent. The evidence
supports the district court's findings in this regard. The court observed that Mr.
De la Cruz-Tapia parked his vehicle in a clearly visible location at the nearest
gas station off Exit 79 and did not attempt to flee after Agent Nickles missed
Exit 79. In response to Agent Nickles testimony that Mr. De la Cruz-Tapia
seemed to be looking around and that he worked under the hood of his car but
had no tools, the district court noted that Agent Nickles arrived later and Mr.
De la Cruz-Tapia could have been doing a number of things under the hood
prior to the agent's arrival. Once again, in reviewing the record, we are not

persuaded the district court clearly erred in making the inferences it did from
the facts presented.
21

(5) Multiple Border Crossings

22

Finally, the government argues and Agent Nickles testified that the car crossed
the border in an area around Columbus which was a hot spot for illegal alien
and drug traffic, and that multiple border-crossings triggered suspicion. The
district court, however, emphasized that the vehicle in question was registered
in Columbus and the owner lived there. Citing Agent Nickles' own testimony
that many people living in border towns work in the United States and
legitimately cross the border daily near their town of residence, the district
court found that the multiple crossings were not out of the ordinary.

B.
Reasonableness of the Stop
23

We review the reasonableness of Agent Nickles suspicion under a de novo

standard of review. In determining reasonable suspicion, the court must
consider "the totality of the circumstances--the whole picture," United States v.
Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), and in so
doing, must accord due deference to a law enforcement officer's ability to
recognize suspicious behavior. Wood, 106 F.3d at 946.

24

For example, in United States v. Barron-Cabrera, 119 F.3d 1454, 1462 (10th
Cir.1997), the defendant drove a Ryder truck, unaccompanied by another
vehicle driving in tow or in tandem, on a road rarely used for household moves.
The road was reasonably near the Mexican border, and a known smuggling
corridor upon which four vehicles carrying thirty-two aliens had been
apprehended that month. Id. When the driver saw the Border Patrol vehicle, he
became noticeably agitated and then started driving stiffly. Id. His speed
dropped to ten miles an hour below the speed limit, and he drove over the
center and shoulder lines. Id. These factors in the aggregate created a suspicious
portrait, particularly given deference to the law enforcement agent's judgment.
The driver's noticeable agitation and subsequent stiffness is relevant behavior
where the driver recognized he was being followed by a marked Border Patrol
vehicle.

25

In the present case, we assess the impact of the factors in the aggregate, under
the totality of the circumstances, incorporating the underlying factual findings
of the district court. Agent Nickles saw a large, old vehicle, the kind a drug or

illegal alien smuggler might use, driving in an area known for drug and alien
smuggling. It was morning, a usual time for traffic. The vehicle was not heavily
loaded, had no passengers, and did not swerve on the road. Agent Nickles drove
an unmarked jeep which the driver did not recognize as a border patrol vehicle.
The driver did not make eye contact as he drove by Agent Nickles. As Agent
Nickles drove along side the car, the driver took Exit 79 off the interstate. Exit
79 was so sharp, Agent Nickles missed it. The driver parked in the front of the
nearest gas station off the exit, and remained there while Agent Nickles circled
around to catch up with the driver. While Agent Nickles observed from afar,
the driver looked around, looked in the hood and trunk, and re-entered the
highway going in the same direction. The car was legally registered to someone
in the border town of Columbus, and the car had legally crossed the border at
Colombus three times in three days.
26

We conclude in reviewing the aggregate facts, based on the extensive findings

of the district court, that "the mantra 'totality of the circumstances' cannot
metamorphose these facts into reasonable suspicion." Wood, 106 F.3d at 948.
The district court determined, and we decline to redraw the inference, that Mr.
De la Cruz-Tapia did not know Agent Nickles was a border patrol agent.
Accordingly, the three factors that support the agent's conclusion that Mr. De la
Cruz-Tapia was evading him, the lack of eye contact, the abrupt exit, and the
gas station activity, become " 'so innocent or susceptible to varying
interpretations as to be innocuous.' " Id. at 946 (quoting Lee, 73 F.3d at 1039).
Under the totality of the circumstances, we hold the remaining factors in the
aggregate do not amount to a reasonable suspicion to stop Mr. De la CruzTapia.

27

We AFFIRM the order of the district court granting the motion to suppress the
evidence.

The Ninth Circuit has rejected allowing eye contact and avoidance of eye
contact to qualify as suspicious behavior because it "put[s] the officers in the
classic 'heads I win, tails you lose position.' " United States v. Garcia-Camacho,
53 F.3d 244, 247 (9th Cir.1995) (citations omitted)